engineer and certain inspectors of the company, obtained with a view of submitting the same to their company's solicitor for advice in relation to the intended action. N.B.These transcripts were afterwards handed to the solicitor. (3) A statement of facts drawn up by the chairman of the company to be submitted to the company's solicitor for advice in relation to the intended action. N.B.-This statement was afterwards submitted to the solicitor. If a copy of a document, which document would have been admissible in evidence against a litigant, is procured by him for the purpose of being laid before a solicitor, such copy will not ordinarily be privileged (d). RULE 4. The litigation which is contemplated or threatened must be some specific litigation, and not litigation generally (e). But it need not be litigation with the particular adversary against whom the privilege is raised, and a document which is privileged in one action will be privileged in any subsequent action, whether the parties and issues are the same or not; the rule being, "once privileged always privileged" (ƒ). Documentary and other information obtained from third persons by a solicitor to enable him to advise his client, but not with reference to any litigation contemplated or anticipated, is not privileged. Thus where a solicitor, having been consulted in a matter as to which no dispute had arisen, and being desirous of knowing some further facts before giving (d) Cf. Chadwick v. Bowman, 1¤ Q. B. D. 561; Wright v. Vernon, 32 L. J., Ch. 447. (e) See Westinghouse v. Midland Railway Co., 48 L. T., N. S. 462. (f) Per Cockburn, C. J., Bullock v. Corrie, 3 Q. B. D. 358. his advice, applied to a surveyor to tell him what was the state of a given property, it was held that the information was not privileged (g). RULE 5. All evidence obtained by a solicitor or by his direction, even if obtained by the client, is privileged, if obtained after litigation has been commenced or threatened (h). This proposition may also be put thus-no litigant has a right to see that which comes into existence as materials for his adversary's brief. But although a party is not entitled to see his opponent's evidence, he is entitled to know the facts on which he relies to establish his case (i); and a copy of a document, which, if in the possession of a litigant, would not be privileged from production, is not privileged merely because it has been obtained by his solicitor for the purposes of defence to an action; but a collection of documents so obtained will be privileged, especially if the production would give a clue to the solicitor's opinion and advice to his client (k). When a solicitor holds a document for his client, he cannot, against the will of the client, be compelled to produce it by a person who has an equal interest in it with his client (). But a solicitor cannot refuse to produce a document if the client himself could not refuse to do so (m). A solicitor may be asked whether he has papers of his client in court; and if by his answer, which is compulsory, he admits the fact, secondary evidence of their contents may be given (g) Wheeler v. Le Marchant, 17 Ch. D. 675. (h) Ibid., and cf. Cotton, L. J., Lyell v. Kennedy, 23 Ch. D. 404. (i) Cf. Eade v. Jacobs, 3 Ex. D. 335. (k) Chadwick v. Bowman, 16 Q. B. D. 561; Lyell v. Kennedy, 27 Ch. D. 1. (Newton v. Chaplin, 10 C. B. 356. (m) Bursill v. Tanner, 16 Q. B. D. 1. if the originals are not produced (). If a solicitor be subpoenaed to produce a document which he holds for a client, he may, in his discretion, refuse to produce it, and to answer any question as to its contents; and the judge ought not to examine it to ascertain whether it ought to be withheld (0). Where an attorney had been subpoenaed to produce a deed which, at the trial, he refused to produce by the express instruction of his client (p), the party by whom he was subpoenaed then called another witness to give secondary evidence of the deed, by means of a copy. The second witness stated that he had a copy of a deed, but that he did not know whether it was a copy of the deed in question unless he was suffered to look at the deed. It was then suggested that he should be allowed to look at the names of the parcels and the parties to the deed, in order to identify it. The first witness still objected, and it was also contended on the opposite side, that the first witness's client ought to have been called to show that he had given the prohibition, and that all sources of primary evidence had been exhausted. The judge, however, ordered that the second witness should be allowed to look at the indorsement of the deed; and when the latter had thus identified it, the judge received the copy as secondary evidence. An application for a new trial was made, on the ground that this evidence was improperly admitted; but the court upheld the ruling of the Nisi Prius judge on both points. Coleridge, J., said (9): "The second objection is, that the judge improperly overruled the privilege in the next step in the cause. There being some doubt, when the next witness was called, whether the draft which the witness was speaking of was a draft of the deed in question, (n) Dwyer v. Collins, 7 Ex. 639. (0) Volent v. Soyer, 13 C. B. 231. (a) 23 L. J., Q. B. 243. the judge, in order to ascertain that, compelled the attorney to produce the document for the purpose of identification. It was contended that it was a breach of privilege to produce the deed in evidence for any purpose whatever; but whether it is a breach of the privilege or not, must depend upon the circumstances of each case. I quite agree that sometimes, as in Brand v. Akerman, the process of identification will require a disclosure of the contents of the deed; and, if so, I think the inquiry must stop. But here I do not see that anything was done that had the effect of disclosing the contents of the deed, or violating any of the secrets which the attorney had intrusted to him by his client. The indorsement might disclose that the deed was an assignment; but of what property, and whether it was of the legal or equitable estate, it would not disclose. I think, therefore, the learned judge was right." A solicitor who was a witness to a deed is bound to disclose what takes place at the time of its execution (»). The rule of professional confidence is held to extend to all cases in which the solicitor or counsel has been confided in as such, but not to cases where the confidence was given before the relation was formed; or after it has ceased. In Gainsford v. Grammar (s), Lord Ellenborough said: "I fully accede to the doctrine laid down in Cobden v. Kendrick, and Wilson v. Rastall, which is no more than this, that a communication by the party to the witness, whether prior or subsequent to the relation of client and attorney subsisting between them, is not privileged. But this relation may be formed before the commencement of any action. The solicitor may be retained and confided in as such in contemplation of an action; and shall it be said that he is bound to disclose whatever has been revealed to him previous to the suing out of, or the service of, (r) Robson v. Kent, 5 Esp. 552. (s) 2 Camp. 10. the writ?" (t). The privilege is also held to extend to the clerks of solicitors and barristers to whom communications have been made as such (u); and to an unprofessional agent employed by a solicitor's advice to obtain information for a client (x); but not to cases where the communication has been made to the solicitor (y), or his clerk (z), while they have not been acting in their professional character. It extends to communications to a solicitor who ultimately refuses a retainer (a), and to communications made to a solicitor under the mistaken impression that he had agreed to act in the matter (b). A person who is not a solicitor, in whom confidence has been placed under a mistaken idea that he is a solicitor, will not be compelled to disclose the communication (c); but a written opinion given by an ex-Lord Chancellor to a friend has been held not to be privileged (d). Extent of the Privilege. The privilege has been extended to communications between a client in Scotland and a Scotch solicitor practising in London (e); and the opinion of a Dutch lawyer, obtained by the defendants in an action with reference to their defence, has been held privileged (ƒ). The privilege extends to all knowledge obtained by the solicitor which he would not have obtained if he had not been consulted professionally by his client (g); but if a solicitor was aware of a fact from any other source before it was communicated to him by his client his knowledge is not privileged (h). It has been held, that when a solicitor writes (t) Cf. Clark v. Clark, 1 M. & R. 3. (u) Taylor v. Forster, 2 C. & P. 195; Foote v. Hayne, R. & M. 165. (y) R. v. Brewer, 6 C. & P. 363. (z) Doe v. Jauncy, 8 C. & P. 99. (b) Smith v. Fell, 2 Curteis, 667. (c) Calley v. Richards, 19 Beav. 401, Lawrence v. Campbell, 4 Drewry, 485. (f) Banbury v. Banbury, 2 Beav. 177. |